Open Records Decision No. 290
November 30, 1981
Re: Access under Open Records Act to psychologists' licensing files
Ms. Patti Bizzell
Texas State Board of Examiners
of Psychologists
5555 N. Lamar, Suite H-126
Austin, Texas 78751
Dear Ms. Bizzell:
You have requested our decision under the Open Records Act, article 6252-17a,
V.T.C.S., as to whether complaints, charges and actions taken in disciplinary hearings
involving licensees of the Texas State Board of Examiners of Psychologists are available
to the public. Section 23 of article 4512c, V.T.C.S., provides:
Sec. 23. (a) The Texas State Board of Examiners of
Psychologists shall have the right to cancel, revoke, suspend, or
refuse to renew the license or certification of any psychologist . . .
upon proof that the psychologist:
(1) has been convicted of a felony or of a violation of the law
involving moral turpitude by any court; the conviction of a felony
shall be the conviction of any offense which if committed within
this state would constitute a felony under the laws of this state; or
(2) used drugs or intoxicating liquors to an extent that affects
his professional competency; or
(3) has been guilty of fraud or deceit in connection with his
services rendered as a psychologist; or
(4) has aided or abetted a person, not a licensed psychologist,
in representing himself as a psychologist within this state; or
(5) has been guilty of unprofessional conduct as defined by the
rules established by the Board; or
(6) for any cause for which the Board shall be authorized to
take that action by another section of this Act.
. . . .
(e) The Board shall have the right and may, upon majority
vote, rule that the order revoking, cancelling, or suspending the
psychologists' license or certification be probated so long as the
probationer conforms to such orders and rules as the Board may set
out as the terms of probation. The Board, at the time of probation,
shall set out the period of time which shall constitute the
probationary period. Provided further, that the Board may at any
time while the probationer remains on probation hold a hearing, and
upon majority vote, rescind the probation and enforce the Board's
original action in revoking, cancelling, or suspending the
psychologists' license or certification, the said hearing to rescind the
probation shall be called by the Chairman of the Texas State Board
of Examiners of Psychologists who shall cause to be issued a notice
setting a time and place for the hearing and containing the charges
or complaints against the probationer, said notice to be served on the
probationer or his counsel at least ten (10) days prior to the time set
for the hearing. When personal service is impossible, or cannot be
effected, the same provisions for service in lieu of personal service
as heretofore set out in this Act shall apply. At said hearing the
respondent shall have the right to appear either personally or by
counsel or both, to produce witnesses or evidence in his behalf, to
cross-examine witnesses, and to have subpoenas issued by the
Board. The Board shall thereupon determine the charges upon their
merits. All charges, complaints, notices, orders, records, and
publications authorized or required by the terms of this Act shall be
privileged. The order revoking or rescinding the probation shall not
be subject to review or appeal. (Emphasis added).
Acts 1981, 67th Leg., ch. 766, at 2856-57. You have received requests for information
regarding disciplinary proceedings affecting several licensees of the board. The
requestors seek disclosure of the charges filed, the board's decision in the matter, and the
present status of the licensee.
Section 3(a)(1) of the Open Records Act excepts from disclosure:
information deemed confidential by law, either Constitutional,
statutory, or by judicial decision.
The following statement in article 4512c, section 23(e) would seem to create a category
of “information deemed confidential by [statutory] law”: “All charges, complaints,
notices, orders, records, and publications authorized or required by the terms of this Act
shall be privileged.” The usual meaning of “privileged” is “confidential.” Black's Law
Dictionary 270 (5th ed. 1979). The term refers to communications which are, as a matter
of public policy, excepted from disclosure. Communist Party of the United States v.
Subversive Activities Control Board, 254 F.2d 314, 321 (D.C. Cir. 1958). For reasons
that will become apparent, however, we must conclude that, for purposes of section 23,
“privileged” is not tantamount to “confidential.”
In literal terms, the declaration of section 23 is applicable to charges, complaints,
notices, orders, records and publications “authorized or required by the terms of this
Act.” (Emphasis added). Thus, it would prohibit disclosure of the roster of licensed
psychologists which the board is required to publish annually and which section 18 of the
act specifically deems public information. It would except from disclosure the
“standards for qualification” of sub-doctoral personnel which section 19 directs the board
to set. It would even make confidential the board's annual report required by section 10.
Because of these absurd results, we believe it is clear that the declaration of
section 23 was not intended to prohibit disclosure of all board records. It might be
argued that, since the declaration appears in section 23, which is concerned exclusively
with disciplinary proceedings, its effect should be limited to records which relate to such
proceedings. Even if so restricted, however, the declaration conflicts both with specific
portions of section 23 and with other law.
Although the declaration deems “notices” to be “privileged,” section 23 itself
provides that “[p]roceedings for the refusal, suspension, or revocation of a license or
certificate or for the reprimand of a person are governed by the Administrative Procedure
and Texas Register Act,” article 6252-13a, V.T.C.S., as is every “appeal of an action of
the Board.” “Judicial review of an action of the Board shall be conducted under the
substantial evidence rule,” with the result that the entire record considered by the court
will become public. V.T.C.S. art. 4512c, §23(c), (d). Furthermore, the Open Meetings
Act, article 6252-17, V.T.C.S., is applicable to the original disciplinary proceedings
before the board. V.T.C.S. art. 6252-17, §2(a). It has frequently been said that the Open
Records Act should be construed in harmony with the Open Meetings Act. Attorney
General Opinion H-484 (1974); Open Records Decision Nos. 159 (1977); 68 (1975).
Thus, to construe “privileged” in section 23 to mean “confidential” would result in
conflicts within section 23 and between section 23 and other statutes. We must conclude
that, whatever the legislature intended the term “privileged” to mean, it did not intend
that it should be construed to mean “confidential.” We note that “privileged” has been
used in Texas to refer to those communications which require proof of malice in a libel
action. International & Great Northern Railroad Company v. Edmundson, 222 S.W. 181,
183-84 (Tex. Comm'n App. 1920).
Thus, although complaints, charges and actions taken in disciplinary hearings
involving board licensees are not excepted from disclosure as “information deemed
confidential by [statutory] law,” some of the information contained in the files you have
submitted to us is excepted as “information deemed confidential by [judicial decision].”
V.T.C.S. art. 6252-17a, §3(a)(1). Previous open records decisions have recognized that
particular material in a licensing file may be excepted from disclosure by a constitutional
or common law right of privacy. Open Records Decision Nos. 215 (1978); 157 (1977).
See Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d
668, 685-87 (Tex. 1976). After examining the files you have submitted to us, it is our
opinion that only the following material is excepted from disclosure by a constitutional
or common law right of privacy: a portion of the statement of complainant from file
number two and the affidavits of the two complainants from file number four. With
these exceptions, none of the information in these files is excepted from disclosure under
section 3(a)(1).
Very truly yours,
Mark White
Attorney General of Texas
John W. Fainter, Jr.
First Assistant Attorney General
Richard E. Gray III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Walter Davis
Rick Gilpin
Eva Loutzenhiser
Jim Moellinger